Ku-Ring-Gai Municipal Council v Masterplan Consultants Pty. Ltd

[1999] NSWCA 167

CITATION:	Ku-Ring-Gai Municipal Council v. Masterplan Consultants Pty. Ltd. [1999] NSWCA 167 revised - 20/12/99
FILE NUMBER(S):	CA CA40305/97; CA40722/97; CA40373/99
HEARING DATE(S):	25/05/99
JUDGMENT DATE:	25 May 1999
PARTIES :	Ku-Ring-Gai Municipal Council - Appellant Masterplan Consultants Pty. Ltd. - Respondent
JUDGMENT OF:	Giles JA at 21; Fitzgerald JA at 22; Brownie AJA at 1

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	10360/96
LOWER COURT JUDICIAL OFFICER:	Bignold, J.

COUNSEL:	M. Tobias QC with C. McEwen and A. Pickes - Appellant D. Larkin with L. Byrne - Respondent
SOLICITORS:	Abbott Tout for Appellant Deacons Graham & James for Respondent
CATCHWORDS:	Local Government - Appeals - NSW -Land & Environment Court - Appeal from decision of assessor, when preliminary question of law decided by judge, and assessor merely follows judge's ruling.
ACTS CITED:	Local Government Act 1993 Roads Act 1993 Traffic Act 1909 Land & Environment Court Act 1979
CASES CITED:	Nil
DECISION:	See pars.23, 27, 34 and 35 of judgment

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40305/97
CA 40722/97

CA 40373/99

GILES JA
FITZGERALD JA
BROWNIE AJA Tuesday 25 May 1999

KU-RING-GAI MUNICIPAL COUNCIL V. MASTERPLAN CONSULTANTS PTY. LIMITED

JUDGMENT

1   BROWNIE AJA: The respondent is a consultant acting for the owner of a parcel of land at Wahroonga which has been called "the subject site". The appellant council is the owner of a contiguous parcel of land known as Wahroonga Car Park, used as a public car park.
2   The owner of the subject site sought development consent in respect of a proposed development, which included the provision on the subject site of a basement car park. The only means of access to that proposed basement car park was to be through the council car park. The appellant refused the application upon grounds which included the proposition that the proposed means of access were inadequate and unavailable. The respondent appealed to the Land and Environment Court.
3   Pursuant to the provisions of a practice direction of that court, the case was listed before Bignold J on 15 May 1997, who decided a preliminary question of law, giving his decision on 16 May.
4   Before his Honour the parties tendered a statement of agreed facts and proposed two questions. Question 1 was, whether the owner of the subject site and the owners' lessees, servants and agents or invitees have a legal right of vehicular access over the land known as the Wahroonga Car Park to parking facilities on the subject site. Question 2 is not presently relevant.
5   His Honour answered question 1 as follows.

Wahroonga Car Park is a "public place" within the meaning of the Local Government Act 1993 but is not a "public road" within the meaning of that Act or the Roads Act 1993. It is a "public street" within the meaning of the Traffic Act 1909. Accordingly, no rights in the nature of the right of passageway or the right of access such as are respectively provided for in s.5 and 6 of the Roads Act apply in respect of Wahroonga Car Park.

However, while ever Wahroonga Car Park remains a "public place" and its use is governed by the Plan of Management (Exhibit 1) adopted therefor by the Council under the Local Government Act 1993, it is open to the public for use for purposes consistent with that Plan of Management. The proposal by the Applicant to use the travel aisles within Wahroonga Car Park to gain access to the proposed on-site car parking provision is not inconsistent with the uses permitted under the Plan of Management and the Local Government Act.

In this limited sense, Wahroonga Car Park is available to provide access to the Applicant's proposed development.

6   In the meantime, the parties had commenced the hearing before Assessor Hussey later on 15 May, and he gave his decision on 19 May, allowing the appeal.
7   The appellant sought and on 7 July 1997 obtained the leave of this Court to appeal from the decision of Bignold J, and that appeal is before us today. The appellant did not initially seek leave to appeal from the decision of Assessor Hussey, because until this Court had granted leave to appeal from the decision of Bignold J there was nothing to appeal from. However, on some date after 7 July 1997 the appellant sought an extension of time within which to seek leave to appeal from the assessor's decision, and coincidentally that application for leave to appeal came before Bignold J. His Honour dismissed the application as being incompetent and part of the problem today concerns this view taken by his Honour.
8   Although the respondent initially resisted the appeal, it has now filed a submitting appearance.
9 Turning to question 1 answered by Bignold J on 16 May, the respondent had argued that the Wahroonga Car Park was a "public road" within the meaning of the Local Government Act 1993 and the Roads Act 1993, by analogy, it seems, to the definition of "public street" in the Traffic Act 1909. The last-mentioned statute defines the expression "public street" as including any "place" open to or used by the public, so that within that definition the Wahroonga Car Park is a public street. However, the car park is not a road in the ordinary dictionary sense of that word, and there is nothing in the extended definitions of "road" or "public road" in either of the other statutes containing any provision analogous to the use of the word "place" as being an extension of the word "road".
10 His Honour therefore correctly rejected this submission, with the consequence that he rejected the submission that s 6 of the Roads Act operated to give to the owner of the subject site a right of access from the council car park.
11   We have been told his Honour went on to give the answer contained in the last three sentences of his answer to question 1, already quoted, although that precise question had not been argued. It is this finding which the appellant challenges.
12   Remembering that question 1 was framed in terms of the legal right to vehicular access to the owner of the subject site and those associated with the owner, it seems appropriate to accept as correct the appellant's starting point, that such a legal right can only arise in circumstances such as those now before us, either at common law or by force of some statute. There is no such right at common law.
13 His Honour reasoned the matter in this way. The Wahroonga Car Park was both a "public place" and "community land" within the meaning of the Local Government Act, and since it was community land, its used was governed by a plan of management adopted by the appellant under the provisions of the Local Government Act, and the use of the car park as a means of access from a public street to the proposed basement car park was not incompatible with the plan of management.
14 S 35 of the Local Government Act requires community land to be used and managed in accordance with the plan of management applying to the particular parcel of land in question. The plan applicable here provides that the basis of management is that the car park is to be used to provide for car parking. The plan permitted the appellant to grant easements in favour of private land owners, provided the appellant was satisfied that there was no reasonable alternative, and that appropriate benefits were obtained for the car park and associated areas.
15 In my view, the proposed use of the car park, permitting the owner of the subject site and those associated with the owner, to use the car park as a means of access to the proposed basement car park does involve a use of the council car park which is incompatible with the plan of management. The plan envisages using the car park for parking, and not as a thoroughfare, or a way, or a street, or a means of access to neighbouring privately owned land, that it would not be permissible for the appellant to grant an easement unless the conditions mentioned were satisfied, and it appears that they have not been. S 35 imposes on the appellant a positive requirement that community land be used only in accordance with the plan.
16   I propose therefore that the appeal be allowed and that orders be made in terms of the short minutes which have been handed up, as amended in the course of discussion.
17 A further problem arose in consequence of the fact that Assessor Hussey made an order based upon the correctness of the decision of Bignold J. When the appellant applied for leave to appeal from the assessor's decision under s 56A of the Land and Environment Court Act 1979, Bignold J ruled, in a decision now reported at 96 LGERA 235, that the proposed appeal was incompetent, because although the assessor had decided the case, he had not decided the relevant question of law.
18   In my respectful view, his Honour fell into error at this point. A necessary ingredient in the assessor's judgment was the acceptance of the decision of Bignold J, which in my view was wrong. It is of no moment that the assessor followed and applied the decision of his Honour, as he was of course bound to do. It was a necessary step in the chain of logic that took the assessor to the decision that he made.
19   In the course of discussion today, there emerged what seems to be a potential problem about appeals from assessors in circumstances such as this. As I have said, the respondent now submits to the orders sought, so that there has been no contradictor. In these circumstances and to avoid future embarrassment, it seems to me that we should not say anything today about the potential problems. Rather, in the course of discussion, the suggestion was made that relief be granted in the nature of certiorari. Short minutes have been brought in, and again amended in the course of discussion.
20   I propose that orders be made in terms of those short minutes, generally in the nature of certiorari, quashing the decision of the assessor.
21   GILES JA: I agree with Brownie AJA. Certiorari would not normally be granted to correct an error of law on the part of the Land and Environment Court, a superior court. The Commissioner's grant of consent, however, was clearly flawed, because founded on a determination of Bignold J which this Court has held to be incorrect. The only question was a procedural one, how to give effect to this Court's decision in its impact on the Commissioner's grant of consent in the same proceedings as those in which Bignold J had made his determination. There was doubt about the availability of an avenue of appeal through the hierarchy in the Land and Environment Court and to this Court. Rather than commit the parties to the uncertainty and expense of a procedural dispute, in the particular circumstances I think that this Court can and should properly put matters to right by recognising error of law on the face of the Commissioner's decision and quashing that decision.
22   FITZGERALD JA: I agree with what has been said by each of the other members of the Court.
23   GILES JA: I think the result is in the first appeal, that is 40305 of 1997, that there should be orders as in the short minutes which have been handed up, save that paragraph 3 is deleted and replaced by a paragraph which says "Question 1 in the judgment of Bignold J of 16 May 1997 be answered no". Mr McEwen, is that the way you see it?
24   McEWEN: Yes, your Honour.
25   GILES JA: And Mr Larkin?
26   LARKIN: Yes, your Honour. In relation to the second appeal, in light of the reasons that your Honours have just given, we're agreed that there should be no order as to costs.
27   GILES JA: In that first appeal, 40305 of 1997, there will be orders in accordance with the short minutes of order which I have amended in the manner just enunciated. I will initial them and date them today for identification.
28   In the second appeal, which is 40722 of 1997, strictly an application for leave to appeal, that, Mr McEwen, presumably should be dismissed as no longer of moment?
29   McEWEN: Yes your Honour, that's correct.
30   GILES JA: That was what you were referring to a moment ago, Mr Larkin?
31   LARKIN: Yes, your Honour.
32   GILES JA: So dismissed with no order as to costs?
33   McEWEN: Each party to pay its own I suppose.
34   GILES JA: In the application for leave to appeal going under the number of 40722 of 1997, the order will be that the application is dismissed with no order as to costs to the intent that each party will pay its own costs.
35   That then leaves the third appeal, which is 40373 of 1999. Gentlemen, I think the result is that there will be orders in accordance with the short minutes handed up, except that 2 becomes 3 and there is inserted a 2 reading "That the proceedings be remitted to the Land and Environment Court to be determined in accordance with law".
36   Those orders will be made and again I will initial the short minutes and date them so they can be placed with the papers.

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